IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
)
Respondent, )
) WD77727
v. )
) OPINION FILED:
) March 1, 2016
JEFFREY P. THOMPSON, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Edith L. Messina, Judge
Before Division II: Cynthia L. Martin, Presiding Judge, and
Mark D. Pfeiffer and Karen King Mitchell, Judges
Mr. Jeffrey Thompson (“Thompson”) appeals the Judgment of the Circuit Court of
Jackson County, Missouri (“trial court”), finding him guilty, following a jury trial, of two counts
of robbery in the first degree and two counts of armed criminal action. Thompson raises three
points on appeal, in which he challenges the sufficiency of the evidence; the admission of certain
evidence; and the trial court’s failure to declare a mistrial, sua sponte, because of the
prosecutor’s alleged improper comments in opening statement and closing argument. We affirm.
Facts and Procedural History1
On February 1, 2013, Thompson was driving his girlfriend’s 2013 black Chevrolet
Impala rental car; Jeremy Williams and David West were passengers. Thompson knew that
Williams had a 9-millimeter semiautomatic black gun tucked into the waist of his pants.
About 7:00 p.m. that evening, Christopher Munns, a Papa John’s Pizza deliveryman,
delivered a pizza at 4006 Oak in Kansas City, Missouri, and got back in his car. Thompson,
Williams, and West saw Munns. Thompson dropped Williams and West off, and Williams and
West approached Munns’s car. One of them knocked on the driver’s side door and said he
needed to use Munns’s phone because someone had been shot down the road. Munns was
suspicious, so he rolled up his window and tried to put his car in drive. When he looked up, one
of the men had pulled out a black 9-millimeter semiautomatic pistol. The man told Munns to
open the door and hand him the money he had received from the delivery and his wallet. Munns
complied. During this encounter and after Munns had been subdued by the gun pointed at him,
the second man went through the front and back passenger doors to rummage around the inside
of Munns’s car. The two men (Williams and West) then ran off, and Thompson picked them up
in a nearby alley. Munns drove back to Papa John’s and called 911. Officers responded.
Later that evening, between 7:00 p.m. and 8:00 p.m., Thompson again dropped off
Williams and West, and they approached Minh Nguyen from behind as he was attempting to
lock the gate of his driveway at 2652 East 8th Street in Kansas City, Missouri. One man pointed
a black gun at the back of Nguyen’s head and said, “Don’t scream and don’t turn back, don’t
look back, and give me the money.” The other man then searched Nguyen for Nguyen’s
1
In an appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s verdict.
State v. Ramirez, 447 S.W.3d 792, 794 n.1 (Mo. App. W.D. 2014).
2
valuables. The men took Nguyen’s cell phone and wallet. The men (Williams and West) ran
off, and Thompson picked them up. Nguyen ran home, and his wife called the police.
Kansas City, Missouri, Patrol Officer Benjamin Lindsay responded to the dispatch of a
reported robbery at Nguyen’s residence. When Nguyen told Officer Lindsay that his cell phone
had been stolen, Officer Lindsay used a cell phone locator app to track Nguyen’s cell phone.
The phone pinged to a location in Kansas City, Kansas, and Officer Lindsay broadcast the
location of the phone.
Kansas City, Missouri, Patrol Officer Darren King responded to the location in a marked
police car while on the lookout for a black vehicle occupied by three black males, as described
by witnesses. Officer King saw a black vehicle traveling at a high rate of speed. The vehicle
suddenly pulled to the curb, and three men exited the vehicle and ran. Officer King chased the
driver of the vehicle and apprehended Thompson. Within ten minutes, officers found Williams
hiding where Nguyen’s phone had been tracked. He had Nguyen’s wallet and phone, Munns’s
stolen property, and a loaded gun.
The next day, on February 2, 2013, Kansas City, Missouri, Detective Kristofer Oldham
interviewed the three suspects who were being held at the Wyandotte County, Kansas, jail.
Thompson waived his Miranda rights and gave Detective Oldham an audio-recorded statement.
Thompson admitted dropping off and picking up Williams and West at the scene of five
robberies or attempted robberies within an hour and a half. He said Williams had a gun the
entire time, and Williams and West forcibly took money, a cell phone, bank cards, and wallets
during the robberies. Thompson said he could have participated but felt good about himself
because he had no involvement, and “I made it where I couldn’t get involved. I dropped off.”
3
Thompson was charged under Count I with the class A felony of robbery in the first
degree and under Count II for the unclassified felony of armed criminal action for assisting
Williams and West in the armed robbery of Munns. He was charged under Count III with the
class A felony of robbery in the first degree and under Count IV for the unclassified felony of
armed criminal action for assisting Williams and West in the armed robbery of Nguyen. At the
close of the State’s case, Thompson moved for a judgment of acquittal. The trial court denied
the motion. Thompson presented no evidence and moved for a judgment of acquittal at the close
of all the evidence. The trial court denied the motion. The jury found Thompson guilty as
charged. Thompson then moved for a judgment of acquittal notwithstanding the verdict or, in
the alternative, a new trial. The trial court denied the post-verdict motion and sentenced
Thompson as a prior and persistent offender to twenty years’ imprisonment on the robbery
counts and five years’ imprisonment on the armed criminal action counts, with all sentences to
run concurrently and concurrently to sentences previously imposed. Thompson appeals.
Point I – Sufficiency of the Evidence
In Point I, Thompson asserts a sufficiency-of-the-evidence challenge. The essence of
Thompson’s claim is that the State submitted a verdict director to the jury that unnecessarily
heightened its burden of proving robbery in the first degree; but, in so doing, the State was
obligated to prove the entirety of the heightened jury instruction—which Thompson alleges the
State failed to do—even though the indictment properly charged Thompson with the statutory
elements for robbery in the first degree, and there was sufficient evidence to support the crimes
as charged. Specifically, Thompson argues:
The State could have submitted verdict directors for [the first-degree robbery
counts] that alleged in the third paragraph that Mr. Williams alone threatened the
4
immediate use of physical force against the victims.2 But instead, the State
alleged that both Mr. Williams and Mr. West threatened the use of physical force.
By including the allegation that both men threatened the immediate use of
physical force, the State assumed that added burden of proving beyond a
reasonable doubt that both men did in fact threaten the immediate use of physical
force. The State failed to do so.
Standard of Review
“An appellate court’s review of the sufficiency of the evidence to support a criminal
conviction is limited to determining whether there is sufficient evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” State v. Porter, 439
S.W.3d 208, 211 (Mo. banc 2014). “All evidence and inferences favorable to the State are
accepted as true, and all evidence and inference to the contrary are rejected.” Id. The question is
not whether we believe that the evidence at trial established guilt beyond a reasonable doubt but,
instead, whether, “in light of the evidence most favorable to the State, any rational fact-finder
could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal
quotation omitted).
Even more specifically, the Supreme Court of the United States has very recently
addressed sufficiency challenges on appeal where the jury was instructed under a heightened jury
instruction:
[W]hen a jury instruction sets forth all the elements of the charged crime but
incorrectly adds one more element, a sufficiency challenge should be assessed
against the elements of the charged crime, not against the erroneously heightened
command in the jury instruction.
That conclusion flows from the nature of a court’s task in evaluating a
sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses
whether “the government’s case was so lacking that it should not have ever been
submitted to the jury.” Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57
L. Ed. 2d 1 (1978) (emphasis deleted). On sufficiency review, a reviewing court
makes a limited inquiry tailored to ensure that a defendant receives the minimum
2
On appeal, Thompson does not contest that Williams was armed with a deadly weapon and that Williams
threatened the immediate use of physical force upon each of the victims.
5
that due process requires: a “meaningful opportunity to defend” against the
charge against him and a jury finding of guilt “beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 314-315, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). The reviewing court considers only the “legal” question “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id., at 319, 99 S. Ct. 2781 (emphasis in original). That limited
review does not intrude on the jury’s role “to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” Ibid.
A reviewing court’s limited determination on sufficiency review thus does not
rest on how the jury was instructed. When a jury finds guilt after being instructed
on all elements of the charged crime plus one more element, the jury has made all
the findings that due process requires. If a jury instruction requires the jury to
find guilt on the elements of the charged crime, a defendant will have had a
“meaningful opportunity to defend” against the charge. Id. at 314, 99 S. Ct. 2781.
And if the jury instruction requires the jury to find those elements “beyond a
reasonable doubt,” the defendant has been accorded the procedure that this Court
has required to protect the presumption of innocence. Id. at 314-315, 99 S. Ct.
2781. The Government’s failure to introduce evidence of an additional element
does not implicate the principles that sufficiency review protects. All that a
defendant is entitled to on a sufficiency challenge is for the court to make a
“legal” determination whether the evidence was strong enough to reach a jury at
all. Id., at 319, 99 S. Ct. 2781. The Government’s failure to object to the
heightened jury instruction thus does not affect the court’s review for sufficiency
of the evidence.
Musacchio v. United States, 136 S. Ct. 709, 715 (2016).
Analysis
Thompson’s claim is that the evidence was insufficient to prove an element contained in
the verdict directors: that Mr. West threatened the immediate use of physical force against
Munns (Count I) or Nguyen (Count III). He contends that by including the allegation in the
verdict directors that both Williams and West threatened the use of immediate physical force, the
State assumed the added burden of proving that element beyond a reasonable doubt; but, argues
Thompson, the State presented no evidence that West (as opposed to Williams) threatened the
victims with the immediate use of physical force as the verdict director required. He further
6
asserts that because the State failed to present such evidence, his robbery convictions and the
corresponding convictions for armed criminal action cannot stand.
The State charged Thompson with two counts of first-degree robbery. In Count I of its
information in lieu of indictment, the State charged that Thompson:
committed the Class A Felony of Robbery in the First Degree . . . in that on or
about February 1, 2013, . . . the defendant, either acting alone or purposefully in
concert with another, forcibly stole miscellaneous U.S. currency and a wallet in
the possession of Christopher Munns, and in the course thereof another participant
in the crime was armed with a deadly weapon.
Count III charged that Thompson:
committed the Class A Felony of Robbery in the First Degree . . . in that on or
about February 1, 2013, . . . the defendant acting alone or purposefully in concert
with another forcibly stole a wallet and cellular phone in the possession of Minh
Nguyen, and in the course thereof another participant in the crime was armed with
a deadly weapon.
First-degree robbery is codified in section 569.020, which states in pertinent part:
1. A person commits the crime of robbery in the first degree when he forcibly
steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against
any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or
dangerous instrument.
§ 569.020.1.
Thompson was charged in Counts II and IV with two counts of armed criminal action.
Armed criminal action is codified in section 571.015, which provides that “any person who
commits any felony under the laws of this state by, with, or through the use, assistance, or aid of
a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action.”
7
Thompson was charged with the crimes as an accomplice. Section 562.041.1(2) provides
that a person is criminally responsible for the conduct of another when “[e]ither before or during
the commission of an offense with the purpose of promoting the commission of an offense, he
aids or agrees to aid or attempts to aid such other person in planning, committing or attempting
to commit the offense.” Hence, “all persons who act in concert to commit a crime are equally
guilty.” State v. Sistrunk, 414 S.W.3d 592, 597 (Mo. App. E.D. 2013). See also State v.
Thomas, 387 S.W.3d 432, 437 (Mo. App. W.D. 2013).
“[T]o make a submissible case of accomplice liability, the State must show that the
defendant associated himself with the venture or participated in the crime in some manner, but
the State need not show that the defendant personally committed every element of the crime.”
Sistrunk, 414 S.W.3d at 597 (internal quotation omitted). “Any evidence, either direct or
circumstantial, demonstrating ‘affirmative participation’ in the crime charged and committed is
sufficient to support a conviction.” Id. Thus, the State was required to show that Thompson,
“acting in concert with another, committed first-degree robbery with the assistance of a deadly
weapon.” Id.
Thompson admitted to Detective Oldham that he knew Williams was armed with a
deadly weapon—a 9-millimeter semiautomatic handgun. He also admitted that, in the space of
an hour and a half, he dropped Williams and West off and picked them up on five occasions
during which they robbed individuals of money, a cell phone, bank cards, and wallets. A
reasonable juror could have found that Thompson knew Williams was armed, that Williams and
West robbed Munns and Nguyen, and that Thompson acted as a getaway driver. “[P]roof that
the defendant knew the principal actor had robbed someone and that the defendant acted as a
getaway driver is sufficient evidence of participation to support a finding of accomplice
8
liability.” State v. Jones, 296 S.W.3d 506, 510 (Mo. App. E.D. 2009). Furthermore,
Thompson’s flight from police constituted evidence of guilt. Id.
Thompson’s challenge to his convictions of armed criminal action (Counts II and IV) for
the corresponding robbery counts (Counts I and III) is based on his contention that the State
failed to present sufficient evidence as to the robbery counts. As we have just explained, the
evidence was adequate to support his convictions for both counts of first-degree robbery. For the
conviction for armed criminal action to be proper, the evidence had to support the additional
finding that the robbery was committed “by or with or through the use or assistance or aid of a
dangerous instrument.” The evidence in this case supports the conclusion that both Munns and
Nguyen were threatened with a 9-millimeter semiautomatic pistol during the robberies. That
evidence is sufficient to support the additional element contained in the crime of armed criminal
action. Thompson’s acting as a getaway driver in an armed robbery is sufficient evidence of
participation to support a finding of accomplice liability in committing first-degree robbery and
armed criminal action. Id.
On appeal, Thompson does not contest that the information in lieu of indictment properly
charged him with all the statutory elements for accomplice liability for robbery in the first degree
and armed criminal action; nor does Thompson contest that the evidence is sufficient to establish
that Thompson was acting in concert with another, Williams, to forcibly steal property from the
subject victims, and that Thompson knew that Williams was armed with a deadly weapon to
commit the crimes. Instead, Thompson argues that the State failed to prove the entirety of the
heightened jury instructions—that, in addition to Williams threatening the immediate use of
physical force to compel the victims to deliver up their property—the State was also obligated to
9
prove that the other purported criminal actor—West—also threatened the use of immediate
physical force with the subject victims.
Specifically, Thompson argues that the State did not establish every requirement in the
third paragraph of the verdict director in Instructions 8 and 10. The State submitted Instruction 8
as the verdict director for Count I, which charged Thompson as an accomplice in Williams and
West’s armed robbery of Munns:
As to Count 1, if you find and believe from the evidence beyond a
reasonable doubt:
First, that on or about February 1, 2013, in the County of Jackson, State of
Missouri, Jeremy Williams and David West took U.S. Currency,
and a wallet, which was property in the possession of Christopher
Munns, and
Second, that Jeremy Williams and David West did so for the purpose of
withholding it from the owner permanently, and
Third, that Jeremy Williams and David West in doing so threatened the
immediate use of physical force on or against Christopher Munns
for the purpose of forcing Christopher Munns to deliver up the
property, and
Fourth, that in the course of taking the property Jeremy Williams was
armed with a deadly weapon,
then you are instructed that the offense of robbery in the first degree has occurred,
and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of
that robbery in the first degree, the defendant aided or encouraged
Jeremy Williams and David West in committing the offense,
then you will find the defendant guilty under Count 1 of robbery in the first
degree. . . .
The State submitted Instruction 10 as the verdict director for Count 3, which charged Thompson
as an accomplice in Williams and West’s armed robbery of Nyugen:
10
As to Count 3, if you find and believe from the evidence beyond a
reasonable doubt:
First, that on or about February 1, 2013, in the County of Jackson, State of
Missouri, Jeremy Williams and David West took a cellular phone,
and a wallet, which was property in the possession of Minh
Nguyen, and
Second, that Jeremy Williams and David West did so for the purpose of
withholding it from the owner permanently, and
Third, that Jeremy Williams and David West in doing so threatened the
immediate use of physical force on or against Minh Nguyen for the
purpose of forcing Minh Nguyen to deliver up the property, and
Fourth, that in the course of taking the property Jeremy Williams was
armed with a deadly weapon,
then you are instructed that the offense of robbery in the first degree has occurred,
and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of
that robbery in the first degree, the defendant aided or encouraged
Jeremy Williams and David West in committing the offense,
then you will find the defendant guilty under Count 3 of robbery in the first
degree. . . .
Thompson contends that because the State’s verdict directing instructions included a requirement
that the jury find that both Williams and West threatened the immediate use of physical force,
the State assumed the burden of proving that assertion.3
This case is not appreciably distinguishable from Musacchio. In Musacchio, the
defendant, Mr. Musacchio, was indicted under 18 U.S.C. § 1030(a)(2)(C), which made it a crime
either (1) to obtain access to another’s protected computer without authorization or (2) to obtain
access to another’s protected computer with authorization but then exceeding that authorization
3
Thompson argues that Williams was the gun man and did all the “threatening” talking and that West
merely served as the accomplice who “quietly” removed property from the victims. This, Thompson claims,
establishes that West’s conduct was not immediately threatening of physical harm. For reasons discussed infra, we
disagree.
11
improperly. Musacchio, 136 S. Ct. at 713. At trial, the jury was instructed under a heightened
instruction (not objected to by the Government) instructing the jury that § 1030(a)(2)(C) “makes
it a crime for a person to intentionally access a computer without authorization and exceed
authorized access.” Id. at 714 (internal quotation omitted). The jury convicted Musacchio, but
Musacchio challenged the conviction on appeal claiming that there was insufficient evidence to
establish both that he had conspired to access the subject computer without authorization and
with authorization but in a manner that exceeded such authorization. Id.
In rejecting Musacchio’s sufficiency-of-the-evidence challenge, the United States
Supreme Court noted that Musacchio did not contest that he had been properly charged with the
statutory elements for conspiracy to obtain unauthorized computer access; Musacchio did not
contest that the jury instructions included within the heightened instructions all of the elements
necessary to convict him of the charged criminal offense; Musacchio did not contest that the jury
instructions correctly instructed the jury on the Government’s burden of proof—beyond a
reasonable doubt; and Musacchio did not contest that the evidence was sufficient to convict him
of the crime as charged in the indictment. Id. at 715. Under these circumstances, the Court
rejected Musacchio’s sufficiency challenge, concluding that where a jury has convicted under
jury instructions that identify all (and more) of the evidence necessary to convict the defendant
of the crime as charged, “the jury has made all the findings that due process requires.” Id.
Here, Thompson does not contest on appeal that he was properly charged under the
statutory elements for accomplice liability for robbery in the first degree and armed criminal
action; likewise, Thompson does not contest that all (and more) of the evidence necessary to
convict him of the charged crimes was included within the jury instructions from which the jury
did, in fact, convict him. Thus, like Musacchio, Thompson’s sufficiency challenge must fail.
12
Additionally, we note that Thompson is taking the third paragraph of each of the verdict
directors out of context and, in so doing, Thompson is reading the jury instructions in a
grammatical light most convenient for himself. But, read in context, the first paragraph of the
verdict directors is describing how Williams and West, collectively, teamed up to take valuable
possessions from the victims; paragraph two describes how Williams and West, collectively,
teamed up to withhold this property from each of the victims permanently; paragraph three
describes how Williams and West, collectively, teamed up to threaten the victims with
immediate physical harm if the victims did not comply with their demands; and the fourth
paragraph describes how, in the course of this tag team robbery, the tasks of the first three
paragraphs were accomplished via the possession by Williams—not West—of a deadly weapon.
No reasonable juror would conclude that the plain language of this group of paragraphs was
intended to suggest in the third paragraph that both Williams and West possessed a gun and
threatened immediate physical harm with such weapon; rather, the verdict directors were
designed to describe how both Williams and West teamed up to accomplish all of the tasks of
robbery itemized in the first three paragraphs. Clearly, that is exactly what happened.
Finally, when the evidence and inferences favorable to the State are accepted as true, the
evidence supports a reasonable juror’s conclusion that all elements have been satisfied—
including Thompson’s reading of the third element in each verdict director—and Thompson was
guilty beyond a reasonable doubt.
“Missouri law no longer recognizes any distinction between principals and accessories; it
is now the law that all persons who act in concert are equally guilty.” State v. Ward, 473 S.W.3d
686, 691 (Mo. App. W.D. 2015) (citing State v. Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000)).
The focus of Missouri courts on committing “acts” that constitute a crime is upon whether the
13
“actor” has “affirmatively participated” in the “act” alleged to be a crime. State v. Barker, 442
S.W.3d 165, 169 (Mo. App. W.D. 2014). “[A]ll persons who act in concert to commit a crime
are equally guilty.” State v. Thomas, 387 S.W.3d 432, 437 (Mo. App. W.D. 2013) (citing State
v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993)).
Here, acting in concert with Williams, West affirmatively participated in the “act” of
threatening the immediate use of physical force to rob each of the victims. It cannot reasonably
be said that either of the victims did not reasonably fear the immediate use of physical force from
either Williams or West—whether by pulling a trigger on a gun or instructing a fellow criminal
participant to pull the trigger—if the victims failed to permit West to relieve them of their
personal valuable possessions. Thus, a reasonable juror certainly could have concluded that both
Williams and West actively and affirmatively participated in the act of threatening the immediate
use of physical force in perpetrating the robbery upon each of the victims.
Viewing the evidence and all reasonable inferences therefrom in the light most favorable
to the verdict and rejecting all contrary evidence and inferences, the evidence is sufficient to
support Thompson’s criminal convictions under the verdict directing instructions submitted to
and relied upon by the jury in arriving at its guilty verdict.
Point I is denied.
Point II – Admission of Propensity Evidence
In Thompson’s second point, he asserts that the trial court abused its discretion in
admitting the redacted audio recording of Thompson’s statement to the police. He contends that
the tape contained inadmissible propensity evidence of three uncharged robberies.
14
Standard of Review
“The standard of review for the admission of evidence is abuse of discretion.” State v.
Williams, 420 S.W.3d 713, 721 (Mo. App. W.D. 2014) (internal quotation omitted). “A trial
court has broad discretion to admit or exclude evidence at trial.” Id. (internal quotation omitted).
“The trial judge is also in the best position to weigh the probative value of the evidence against
its prejudicial effect.” Id. (internal quotation omitted). “Abuse of discretion occurs when a trial
court’s ruling is clearly against the logic of the circumstances and is so unreasonable as to
indicate a lack of careful consideration.” Id. (internal quotation omitted). Reversal is warranted
only if the error is so prejudicial that it deprived the defendant of a fair trial. Id. “Trial court
error is not prejudicial unless there is a reasonable probability that it affected the outcome of the
trial.” Id.
Analysis
In the audio recording, Detective Oldham told Thompson that they were talking about
more than one robbery and that police “talked to a lot of people; they’re describing your
vehicle.” Detective Oldham asked Thompson, “How many times did you stop and drop them
off?” Thompson answered, “I dropped them off three times yesterday.” Detective Oldham then
told Thompson, “There was a condensed period of time where they were getting in and out of the
car quite a few times in that little condensed period of time; we have several reports from that
condensed period of time. So we’re just talking about dropping folks off.” The Detective asked
Thompson, “How many times was it in that little period of time? . . . So how many times, how
many times did you drop them off and pick them up? We’ve got reports, we’ve got that vehicle
description, so I know it happened, I want to know how many times they did this. We have these
reports; how many?” Thompson then stated that he dropped Williams and West off four times.
15
But then he pinpointed five locations where he dropped the pair off, and he described the items
they returned with when he picked them up. Thompson said that in each robbery, there was one
victim. He stated the five incidents took place in an hour and a half time frame.
“The well-established general rule concerning the admission of evidence of prior criminal
acts is that proof of the commission of separate and distinct crimes is not admissible unless such
proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for
which he is on trial.” State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008) (internal quotation
omitted). The rationale for this rule is that “[e]vidence of other crimes, when not properly
related to the cause on trial, violates defendant’s right to be tried for the offense for which he is
indicted.” Id. (internal quotation omitted). This right is guaranteed in article I, sections 17 and
18(a) of the Missouri Constitution that a defendant has the right to be tried only on the offense
charged. Id. at 587-88. Article I, section 17 states that “no person shall be prosecuted criminally
for felony or misdemeanor otherwise than by indictment or information[.]” Article I, section
18(a) provides “[t]hat in criminal prosecutions the accused shall have the right . . . to demand the
nature and cause of the accusation[.]”
Accordingly, “[a]s a general rule, evidence of uncharged misconduct is inadmissible for
the purpose of showing the propensity to commit such crimes.” State v. Sprofera, 372 S.W.3d
17, 19 (Mo. App. W.D. 2012) (internal quotation omitted). “However, evidence of the
defendant’s prior misconduct is admissible when it is logically relevant—it has some legitimate
tendency to directly establish the accused’s guilt of the charges for which he is on trial, and when
it is legally relevant—its probative value outweighs its prejudicial effect.” Id. (internal quotation
omitted). Evidence has a legitimate tendency to prove the specific crime charged when the State
uses it to establish:
16
(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common
scheme or plan embracing the commission of two or more crimes so related to
each other that proof of one tends to establish the other; or (5) the identity of the
person charged with commission of the crime on trial.
State v. Joyner, 458 S.W.3d 875, 882 (Mo. App. W.D. 2015) (internal quotation omitted). “In
addition, evidence of uncharged crimes that are part of the circumstances or the sequence of
events surrounding the offense charged may be admissible to present a complete and coherent
picture of the events that transpired.” Id. (internal quotation omitted) (emphasis added).
Under these principles, we conclude that the trial court did not err in admitting the
redacted audio recording of Thompson’s statement. The recording was logically relevant to
explain the sequence of events that surrounded the charged offenses. The three uncharged
robberies were part of the circumstances of the two charged offenses and part of the sequence of
events. Thompson transported Williams and West to and from each robbery. The five events
“were a continuous sequence of events closely related in nature, scope, and time.” State v.
Payne, 135 S.W.3d 504, 508 (Mo. App. W.D. 2004). Thompson’s statement about the five
incidents “was admissible to provide a complete and coherent picture of the events that occurred
that day.” Id. at 507. Moreover, the recording of defendant’s confession was legally relevant as
its probative value outweighed any prejudicial effect. The evidence was “highly probative” of
Thompson’s guilt and “necessary to provide the jury with a complete understanding of the
virtually unbroken chain of events that occurred that day.” Id. at 508.
Point II is denied.
Point III – Mistrial Due to Propensity Arguments
In Thompson’s third point, he asserts that the trial court plainly erred in failing to declare
a mistrial, sua sponte, and in permitting the State to make propensity arguments in its opening
statement and closing argument. Thompson concedes that although he objected to the
17
prosecutor’s opening statement, he did not include that objection in his motion for new trial, and
he did not object to the prosecutor’s closing argument; therefore, this issue is not preserved and
may be reviewed only for plain error pursuant to Rule 30.20.
Standard of Review
Any issue that was not preserved at trial is only reviewable for plain error. State v.
Letica, 356 S.W.3d 157, 167 (Mo. banc 2011). “[P]lain errors affecting substantial rights may be
considered in the discretion of the court when the court finds that manifest injustice or
miscarriage of justice has resulted therefrom.” Rule 30.20. “The plain error rule is to be used
sparingly and may not be used to justify a review of every point that has not been otherwise
preserved for appellate review.” Letica, 356 S.W.3d at 167 (internal quotation omitted). Plain
error review is a two-step process. State v. Beggs, 186 S.W.3d 306, 311 (Mo. App. W.D. 2005).
“First, the court must determine whether the trial court committed an evident, obvious and clear
error, which affected the substantial rights of the appellant.” Id. “[T]he second step of plain
error review requires the court to determine whether manifest injustice or a miscarriage of justice
resulted therefrom.” Id. at 312.
“[A]ppellate courts are wary of claims that a trial court erred in failing to declare a
mistrial sua sponte in a criminal case.” State v. Sprofera, 427 S.W.3d 828, 837 (Mo. App. W.D.
2014) (internal quotation omitted). “Granting a mistrial is a drastic remedy and should be
exercised only in extraordinary circumstances where the prejudice to the defendant cannot be
removed any other way.” Id. (internal quotation omitted). “Trial judges are not expected to
assist counsel in trying cases, and trial judges should act sua sponte only in exceptional
circumstances.” Id. (internal quotation omitted). Accordingly, “a trial court’s decision not to
grant a mistrial sua sponte will not be reversed as plain error absent a clear showing of a
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manifest abuse of discretion, which resulted in manifest injustice or a miscarriage of justice.” Id.
(internal quotation omitted).
Analysis
“The purpose of an opening statement is to inform the circuit court and the jury of the
general outline of the anticipated evidence and its significance.” State v. Powell, 286 S.W.3d
843, 850 (Mo. App. W.D. 2009) (internal quotation omitted). We will grant plain error review
on the basis of an error in the prosecutor’s opening statement “only when the defendant can show
that the prosecutor’s remark had a decisive effect on the jury’s determination.” Id. (internal
quotation omitted). “This is a difficult standard to meet because the courts have concluded that
the impact of the prosecutor’s opening statement diminishes after the parties introduce evidence
and give their closing arguments.” Id.
Thompson challenges the portion of the prosecutor’s opening statement in which he
pointed out that Thompson picked up and dropped off Williams and West five times:
Good morning. You sat through a long day yesterday and heard us talk a lot.
One thing you didn’t hear is why you’re here. You’re here because, by the
defendant’s own admission, he was the drop-off and getaway driver for five
armed robberies. You’ll hear, by the defendant’s own admission, he picked up
Mr. Williams, he switches from his Yukon to his girlfriend’s rental car that
doesn’t come back to him. You’ll hear, by his own admission, that he then picks
up Mr. West and they drive around. And by his own admission, he drops them
off five times. And he picks them up five times. Knowing they’re committing
robberies, knowing they have a gun. And knows the property taken. That’s why
you’re here.
Thompson is not entitled to relief because he has not established that the record facially
shows that the prosecutor’s statement resulted in manifest injustice. “[A] defendant suffers no
manifest injustice from a prosecutor’s remark in his opening statement when the record
establishes that the prosecutor’s remark was supported by the evidence at trial, and the [trial]
court instructs the jury that it should not consider the prosecutor’s opening statement to be
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evidence.” Id. at 851. In this case, the record establishes that the prosecutor’s remarks were
supported by evidence at trial: in Thompson’s redacted confession, he discussed his involvement
in the uncharged robberies during the same time period as his involvement in the charged
offenses. And, as discussed in our analysis of Point II, this evidence was properly admitted at
trial by the trial court, over Thompson’s objection.
Thompson also claims that the trial court erred in permitting the State to make propensity
arguments in closing by repeatedly referring to five robberies:
Good morning, ladies and gentlemen. Yesterday in opening argument, my
co-counsel, Mr. Stigall, asked you, why were we here. And he told you we were
here because, by the defendant’s own admission, he was the getaway driver in
five separate armed robberies. Every piece of evidence you have heard so far
confirms that fact.
....
They say the only thing linking is the audio. Ladies and gentlemen, we have the
same car description, we have the car pulled over, we have the three of them
fleeing, we have the property recovered. We have a continued course of conduct.
Drop off, pick up; drop off, pick up. Five times.
....
Ladies and gentlemen, the defendant is in the business of robberies. And when
the business is good, you’re out there laughing about it, talking to prostitutes,
driving around holding up people at gunpoint with two kids.
Thompson contends that the State used the three uncharged robberies as substantive evidence of
Thompson’s guilt of the two charged robberies. As we discussed in Point II, the evidence
Thompson complains should not have been permissible closing argument was, in fact, properly
admitted evidence at trial by the trial court. Thus, it can hardly be said that the trial court
committed error in failing to, sua sponte, declare a mistrial in response to hearing the prosecutor
argue the evidence that was properly admissible during the course of the trial.
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“A prosecutor is allowed to argue the evidence and all reasonable inferences from the
evidence during closing arguments.” State v. Brown, 337 S.W.3d 12, 14 (Mo. banc 2011). Here,
Thompson’s recorded statement to the police, in which he recounted his participation in five
armed robberies, was properly admissible in evidence and was played for the jury. Therefore,
the State was allowed to make these arguments in closing based on the evidence that had already
been presented to the jury, as well as to argue reasonable inferences therefrom.
Point III is denied.
Conclusion
The judgment of the trial court is affirmed.
Mark D. Pfeiffer, Judge
Cynthia L. Martin, Presiding Judge, and
Karen King Mitchell, Judge, concur.
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